The Court of Justice of the European Union (“CJEU”) has clarified the interpretation of Article 3(1) of Directive 2001/29/EC (the “InfoSoc Directive”), ruling that the transmission by a spa of signals carrying protected works through television and radio sets to patients’ rooms constitutes a ‘communication to the public’.  The court also commented on the status of national collecting societies under European competition law, providing guidance on the circumstances in which such societies may be considered to abuse their dominant positions.  

The claimant, OSA (a Czech copyright collecting society), claimed royalties and late interest from the defendant, Léčebné láznĕ, for installing radio and TV sets in the bedrooms of its spa establishments through which protected works were made available to patients without first securing a licence from OSA. In defence, Léčebné sought to rely upon Article 23 of the Czech Copyright Law, under which healthcare establishments are, in certain circumstances, exempt from paying copyright fees when providing healthcare services. Léčebné also argued that OSA was abusing its monopoly position in the market because its fees were disproportionately high compared with those charged by collecting societies in neighbouring countries. As a result, Léčebné claimed that its ability to compete with spas in neighbouring countries was undermined, thereby restricting its freedom to provide services. 

In deciding that Léčebné’s conduct constituted a ‘communication to the public’, the court observed that a spa establishment is likely to accommodate – at the same time and successively – an indeterminate but fairly large number of people who can receive broadcasts in their rooms. Further, as in the case of SGAE, the CJEU confirmed that the concept of a ‘new public’ applied. By intentionally providing its patients with access to the protected works, the spa was transmitting the signals in question to a ‘new public’, that is, one not originally contemplated by the copyright holders. The CJEU also found that Art 23 of the Czech Copyright Law, relied upon by Léčebné in defence of its actions, did not comply with the InfoSoc Directive: the available exceptions provided under the Directive applied only to the reproductionright and/or for the benefit of individuals with a disability, neither of which were relevant in this instance. It is worth noting, however, that as a directive cannot of itself be enforced against an individual, OSA will in any event be unable to rely upon the InfoSoc Directive to set aside Art 23; instead, it is for the Czech national court to interpret that legislation and determine Léčebné’s ultimate liability.

Finally, the court confirmed that although OSA held a dominant position over the management of copyright works in the Czech Republic, this does not in itself contravene Community law.  However, the CJEU did observe that if OSA’s fees were ‘appreciably higher’ than those charged in other Member States, or ‘excessive in relation to the economic value of the service provided’, this might suggest an abuse of a dominant position. In either case, this would be a matter for national courts to determine; however, the general nature of the CJEU’s comments in this regard raises the potential for further litigation on this issue.

The case is Case C-351/12 OSA, and can be read in full here.